The controversy over the FBI raid of Rep. William Jefferson’s (D-LA) congressional office continued today despite efforts by Senate Majority Leader Bill Frist’s (R-TN) to put it to rest over the weekend. Frist, who was on "Fox New Sunday", stated about the FBI, "I don’t think it abused separation of powers … I think there’s allegations of criminal activity, and the American people need to have the law enforced." House Judiciary Committee James Sensenbrenner (R-WI) feels differently and today he held a hearing titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?" Sensenbrenner and the ranking Democrat John Conyers (D-MI) agreed that the raid was out of bounds with the chairman saying, "It is about the ability of the Congress to be able to do its job free of coercion from the executive branch." Conyers stated, "We’ve never learned why the member in question was not permitted to have his attorneys present while his offices were searched for some 18 hours."
Personally, I believe that this was an extraordinary case, but was not conducted "out of bounds". The affidavit against Jefferson was unbelievably detailed, showing an almost unparalleled level of corruption by an elected official. The FBI was carrying out a legally obtained warrant to search Jefferson’s office in relation to activities that did not include any legislative action nor any activity directly related to his elected role. I don’t think that members can live above the law just because they have been chosen by the people of their district or state to represent them. That is essentially the argument of people who are against the raid: that members may operate their congressional office as though it were a Cayman Islands bank account (hat tip to Bill Allison). This is what Josh Marshall is getting at when he states his support of the raid:
If the Feds can raid a congressman’s house, it’s not clear to me why they can’t raid his office. Sure, there’s some room for prudential restraint and a respect for comity. But if the DOJ can’t search a congressman’s office, then the power to investigate and prosecute close to falls apart since that creates a safe harbor for incriminating information. Any serious claim that the functioning of Congress falls outside the bounds of the DOJ would apply to acts as well as work product. And that means that any bribery prosecution is impossible since official acts are an element of the crime.
I understand that the speech and debate clause is in the Constitution. It is there because Queen Elizabeth I and King James I were disrespectful of Parliament. It ought to be, in my judgment, construed narrowly. It should not be in any way interpreted as meaning that we as Members of Congress have legal protections superior to those of the average citizen.
If you want to read a selection of arguments made by law professors Josh has a number of links here (pro and con).